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District Court 5 February 2021

R v Borri

[2021] NSWDC 189

Sexual offences
CRIME CHILD SEX OFFENCES SENTENCE CONTEXT HABITUATION OF SEXUALISED CONDUCT COMPLAINT

Citation: R v Borri [2021] NSWDC 189
Court: District Court of New South Wales
Date: 5 February 2021
Judge(s): King SC DCJ

Background

The offender, a carpet layer then aged in his forties, pleaded guilty to 26 counts of child sexual offences committed against four child victims over approximately ten and a half years. Three of the victims were girls aged between 10 and 16 years, and one was a boy aged 12 or 13. The offending occurred across multiple locations in the Port Macquarie and mid-North Coast regions of New South Wales.

The offender had family or quasi-family connections to each victim. He groomed one victim (GS) through her aunt, whom he had married. He gained access to two other victims (SS and TS) through a long-term clandestine relationship with their mother, whom he led to call him the children's "real father". A fourth victim (JG) was the daughter of his sister's partner. In each relationship, the offender exploited positions of trust and familial authority over extended periods.

The offences ranged from acts of indecency to aggravated sexual intercourse, and included the offender normalising sexual conduct with children, recording sexual acts, paying victims for sexual activity, and enlisting a victim's mother as a co-participant in offending.

Legal Issues

  • What aggregate sentence appropriately reflected the objective seriousness of 26 child sexual offences committed over ten and a half years against four victims, consistent with the principle of totality?
  • How should the offender's guilty plea, expressions of remorse, character references, psychiatric report, and risk of reoffending be weighed as subjective factors?
  • Where a standard non-parole period only came into force during the charged period, and it was possible some offences predated its operation, should it be used as a sentencing guidepost?
  • Was a finding of special circumstances warranted, given the offender had no prior custodial experience?

Decision

Objective seriousness across the 26 counts: The court assessed each count individually against the applicable maximum penalty and, where relevant, the standard non-parole period. Counts involving skin-to-skin genital contact were treated as considerably serious examples of their type, consistent with Court of Criminal Appeal authority (at [124]). Aggravating features included the sustained grooming and normalisation of sexual abuse, the use of authority over the victims, the presence of co-offending by the victims' mother in some counts, the filming of sexual acts, the payment of victims, and the degrading nature of several incidents (at [123], [147], [185]). For the count involving SS as camera operator while the offender and her mother had sex, the court applied the same indicative sentence as the co-offender mother had received from another judge, declining to go higher only because of the parity principle (at [230]).

Standard non-parole period: Where the date range of a count meant the offending could have predated the commencement of a relevant standard non-parole period, the court declined to use that standard non-parole period as a guidepost, while remaining conscious of the applicable maximum penalty (at [21], [204]).

Subjective matters and remorse: The court attributed limited weight to the offender's expressions of remorse. His letter to the court was unsworn and untested by cross-examination, rendering it of significantly less value than evidence given on sentence (at [174]-[175]). Character references from family and community members were treated as of limited assistance, as none appeared to have read the agreed facts and none recorded any direct expression of remorse by the offender to the referee (at [171]). The psychiatric report disclosed the offender was not forthright, denying sexual arousal towards children in the face of his own offending history (at [187]-[188]). His suggestion that alcohol caused the offending was unsupported by the agreed facts and was in any event precluded as mitigation by statute (at [185]). The offender's lack of prior criminal history was acknowledged (at [172]).

Totality and aggregate sentence: The sum of all indicative sentences, if fully cumulative, would have approached 77 and a half years. Applying the principle of totality, the court arrived at an aggregate sentence of 16 years imprisonment, comprising a non-parole period of 12 years and a balance of term of four years (at [231]). No special circumstances were found. The court noted that the four-year parole period already exceeded the standard three-year supervision period available under the legislation and was adequate for rehabilitation purposes (at [232]).

Orders Made

  • The offender was convicted on each of the 26 counts.
  • Indicative sentences of imprisonment were fixed for each count, ranging from 8 months (Count 11) to 6 years 4 months (Count 16), with indicative non-parole periods specified where a standard non-parole period applied.
  • An aggregate sentence of 16 years imprisonment was imposed, comprising a non-parole period of 12 years commencing 26 June 2019 and expiring 25 June 2031, and a balance of term of 4 years expiring 25 June 2035.
  • The offender is first eligible for parole on 25 June 2031.

Key Takeaways

  • Where a count's date range straddles the commencement of a standard non-parole period, the District Court held it was appropriate to set aside that standard non-parole period as a guidepost and sentence by reference to the maximum penalty alone, to avoid applying a legislative benchmark that may not have been in force at the time of the conduct (at [21], [204]).

  • Unsworn letters to the court from an offender asserting remorse carry significantly reduced weight because they cannot be tested by cross-examination; the court applied the same caution as courts ordinarily apply to untested out-of-court statements (at [174]-[175]).

  • Character references that fail to engage with the actual facts of the offending, and that do not record any direct expression of remorse by the offender to the referee, are of limited assistance at sentence, even where the referees are genuine in their opinions (at [171]).

  • The parity principle required the District Court to hold an indicative sentence for one count at the same level imposed on a co-offender by a different judge, even though the court indicated it would otherwise have imposed a higher sentence absent that constraint (at [230]).

  • In applying the totality principle to a large number of serious child sexual offences, the sentencing court reduced what would otherwise have been a cumulative term approaching 77 and a half years to an aggregate of 16 years, reflecting both the overall criminality and the need for a just sentence that remains proportionate in a single prison term (at [231]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Imbornone v the Queen [2017] NSWCCA 144
- MRW v R [2011] NSWCCA 260
- R v Gavel [2014] NSWCCA 56
- R v Van Ryn [2016] NSWCCA 307